Summary: Mr B complains about the process used by the Council in evicting him from his allotment. The Ombudsman finds the Council was at fault in that the notes of officers’ interview with Mr B were poor. However, this does not call into question the Council’s decision which was reached through proper process.

The complaint

1. Mr B complains about the process applied by the Council in evicting him from his allotment.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Key facts

6. Mr B has rented allotment plots on a site the Council leases to an allotment holders association (the “AHA”) for many years.
7. On 30 May 2017 the Council received a complaint from the AHA about Mr B’s behaviour towards one of their field secretaries, Ms C, at the allotment site. This was accompanied by statements from Ms C and three witnesses.
8. Council officers tried to contact Mr B by telephone between 30 May and 5 June 2017 to invite him to a meeting to discuss the incident and left messages. Having received no response, they wrote to Mr B on 5 June 2017 asking him to contact the Council as soon as possible.
9. Mr B telephoned the Council the following day and was invited to meet with officers. He agreed to do so.
10. Mr B attended the meeting on 7 June 2017. The following day officers met with Ms C who confirmed her statement about the incident. Officers also met with the witnesses who confirmed their statements.
11. The Operations Manager for Parks and Cemeteries, Officer Z, then reviewed the investigation. He decided to evict Mr B from the allotment with two weeks’ notice. He notified Mr B of the decision on 15 June 2017.
12. Mr B requested an appeal but the Council has no appeal process in respect of such decisions and so treated his request as a complaint. The complaint was considered through the Council’s complaints process but was not upheld.
13. The Council has advised Mr B that he can rent plots on other Council allotment fields subject to the availability of plots. It has confirmed that the closest fields with vacant plots at present is approximately 662 metres from his address.

Analysis

14. Mr B says the process to be followed is set out in the Protocol for Resolution of Complaints from Plot Holders. However, this process does not apply in this case because the complaint was not made by another allotment holder but by a field secretary. The Council does not have a specific process for complaints by field secretaries about the behaviour of plot holders.
15. On the day of the incident, the AHA Chair and Vice Chair spoke to witnesses and took statements. They approached Mr B but he did not wish to speak with them so they made no further attempt to contact him. The AHA referred the matter for the Council to deal with because it was aware the Council had issued a written warning to Mr B 12 months previously.
16. Council officers contacted the witnesses to arrange meetings with them at which they confirmed the contents of their statements.
17. Mr B says one of the witnesses, Ms D, gave a statement to AHA officials but the Council withheld her statement. The Council says an Allotments and Open Spaces Officer, Officer X, telephoned Ms D to ask her to attend a meeting to verify her statement but she was reluctant to attend. Officers decided that, as Ms D had not verified her statement, it could not be used so it was not relied on in reaching a decision.
18. Mr B has provided a statement from Ms D in which she says she gave a lengthy statement to the AHA official and that she later received a telephone call from Officer X asking her to verify her statement over the phone. She says she was astonished that she was being asked to verify a statement that she had not seen. She says she considered the investigation was not fair and told Officer X she was not comfortable being involved. She says Officer X thanked her and left it at that.
19. I find no grounds to criticise the Council in this regard. Officer X telephoned Ms D along with the other witnesses to invite them to attend a meeting to verify their statements. It appears Ms D may have misunderstood and thought she was being asked to verify her statement over the telephone without having seen it. However, as she told Officer X she was not comfortable being involved, officers acted properly by removing her statement from the evidence as it had not been verified.
20. Mr B was asked to attend a meeting to discuss the incident. Officers left telephone messages for him but there are no contemporaneous notes of these telephone calls. There are no grounds to criticise this as the Council is only required to keep a written record of substantive actions and contacts. Officer X wrote to Mr B asking him to contact her as the Council would like to arrange to meet him. The contact with Mr B was therefore recorded.
21. Mr B says he was not given an opportunity to defend himself because the letter did not set out the nature of the alleged allegation against him nor how the investigation would be carried out. The Council says officers made Mr B aware of the reason for the meeting in the telephone messages they left for him. Mr B says the messages did not say what the calls were about. In the absence of independent evidence, I cannot reach a conclusion about what the messages said.
22. However, I am satisfied Mr B should have known what the meeting was likely to be about because the letter was sent by an allotments and open spaces officer and the incident at the allotments had taken place a few days previously. In addition, Mr B could have contacted the Council before the meeting to ask what it was about so he could prepare himself. So, even if the Council did not inform Mr B of the purpose of the meeting in advance, I do not consider this caused him a significant injustice.
23. Mr B says the Council did not tell him he could bring a representative with him to the meeting. Mr B brought a friend to the meeting but says this was because she is vulnerable and could not be left alone so he had to bring her along. She was not there in any supportive capacity. There is no requirement to have a representative at the meeting. It was not an interview under caution. So, there are no grounds to criticise the Council in this regard.
24. The notes of the meeting state officers put it to Mr B that reports had been received via the AHA that an incident had occurred during which he had made upsetting comments to Ms C. The notes state Mr B admitted the accusation and said he had lost his temper and regretted it. The notes state officers reminded Mr B that the Council had written to him previously about his conduct on the field, that his behaviour was not acceptable and they would contact him regarding the outcome following meetings with witnesses.
25. The officer’s notes of the interviews with witnesses are scant. However, the purpose of these interviews was only for the witnesses to verify the statements they had already made to AHA officials. So, there was no need for detailed notes.
26. The notes of the interview with Mr B are also scant. This was fault. Officers should have taken comprehensive notes, setting out the questions that were asked of Mr B and his full responses. While they need not be verbatim, the notes should be detailed and form a proper record of the interview. However, I do not consider the poor quality of the notes caused Mr B a significant injustice because there was sufficient information for Officer Z to reach a decision in conjunction with the other evidence, including discussion with the officers who were present at the interview.
27. I have not formed a view about the merits of the situation for the reasons set out in paragraph 2. However, I have considered whether the Council’s decision was flawed by administrative fault.
28. There are no grounds to criticise AHA officers’ decision to refer the matter to the Council to deal with. The Council does not have a set process for dealing with complaints by field secretaries against plot holders, but, given that the Council had issued Mr B with a written warning 12 months previously, I consider it was appropriate for it to investigate the current incident and reach a decision on how to proceed.
29. There are no grounds to criticise the way in which the Council carried out the investigation. The allegations were investigated by Officers X and Y but the decision to evict Mr B was taken independently of them by a senior officer, Officer Z. He considered the witness statements and notes of the interviews and spoke to the officers who conducted the interviews. He also took into account the previous written warning given to Mr B and consulted the Council’s legal department. He decided to evict Mr B from his allotment plots with two weeks’ notice. He notified Mr B of the decision on 15 June 2017.
30. In the absence of administrative fault in the way the decision was reached, there are no grounds to question the Council’s decision to evict Mr B.
31. The Council acted properly by notifying Mr B of the decision to evict him in writing and giving him two weeks’ notice to remove his belongings from the allotment.
32. The allotment garden rules state “The tenant shall not cause any nuisance or annoyance on the allotment garden or interfere in any way with the use of the allotment field by other allotment tenants”. It also states, “If the tenant fails to comply with any of the above rules the Council may, without giving any previous notice, terminate the tenancy agreement and may re-enter the allotment garden and expel the tenant”. The Council was not therefore obliged to give Mr B any notice.
33. The Council says Mr B was aware of the allotment garden rules as these are sent out to plot holders on a yearly basis. Mr B denies this. However, he was sent a warning letter in July 2016 which stated that the Council had received “various complaints that you have been verbally abusive and aggressive to other allotment holders” and that breaches of the allotment rules may result in the Council terminating his tenancy without further notice. The letter quoted Rule 7 which states, “The Tenant shall not make any nuisance or annoyance on the allotment garden or interfere in any way with the use of the allotment field by other allotment tenants”. So, Mr B was aware of this rule.
34. Mr B says that, after the decision to evict him, he received no information about an appeals procedure. He submitted an appeal against the decision which the Council treated as a formal complaint. It responded explaining that it does not have an appeals process for allotment tenants evicted from their plots. It responded to the complaint and advised Mr B he could contact the Ombudsman. There are no grounds to criticise this. The Council is not obliged to operate an appeals process. As the Council’s procedure does not include an appeal, there was no fault in the Council failing to offer one to Mr B. The Council did however consider the issues he raised through its complaints procedure and provide Mr B with a response and properly referred him to the Ombudsman.

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Agreed action

35. The Council has agreed that, within one month of the Ombudsman’s final decision, it will issue a reminder to officers that they should keep a proper record of interviews in this sort of case.

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Final decision

36. I find the Council was at fault in that the notes of the interview with Mr B were poor. However, this did not cause Mr B a significant injustice and does not call into question the Council’s decision to evict him from the allotment.
37. As the Council has agreed to implement the recommended remedy, I have completed my investigation on the basis that I am satisfied with its actions.

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Investigator's decision on behalf of the Ombudsman